If you are purchasing a property with another person you will be asked how you want to hold the property. This is also called the manner of holding. The manner of holding is noted on the certificate of title of your property.
As joint owners, you may own the property as joint tenants or tenants in common. This applies to all types of properties.
It is important to understand the difference, because to make a change later is costly and could unintended consequences. One main consideration is whether you want the property to be included in your will or not.
It is a distinction that blended families or family members and friends purchasing property together should think about.
Joint Tenancy is where all parties named on the title have an equal share of the property. If you own the property as joint tenants, then ownership of the property will be in equal shares by each registered proprietor on title. Where one owner dies, their interest in the property passes automatically to the surviving owner. If there is more than one surviving owner, then their interest will be distributed to the surviving owners in equal shares. In other words, the surviving owners will continue to hold the property as joint proprietors in equal shares.
This is suitable for married couples or de facto spouses typically where the funds from the property will be retained by the surviving partner for the benefit of their children and family only.
It is not recommended for blended families where the surviving spouse wanting to give an inheritance to his or her children from the previous marriage or de factor relationship, or a family member or a friend. The property will go to the other person named on title and will not be dealt with in the deceased person’s estate or will.
Blended families, investors and siblings should consider their circumstances before choosing this method.
Tenants in Common is more ideal for other more arm’s length relationships.
If you own the property as tenants in common, then the joint ownership of the property may be in equal or unequal shares. Each owner may dispose of his or her share in the property independently and the shares do not automatically pass to the remaining owners in the event of death. Instead, they form part of the deceased person’s estate to be distributed in accordance with the deceased’s Will (or letters of administration where there is no will).
The shares are treated similarly to shares in a company. You can decide how you and the other owners wish to own the property i.e. 50/50, 50/30/20 and so on.
If you choose to own the property as tenants in common, then you will need to have a will to distribute your share of the asset after your death.
Your share of the property can be distributed to anyone you wish. In this regard, estate planning advice would be highly recommended.
This is ideal investors, co-owners, siblings, parents in blended families.
Married or de facto spouses who wish to provide for their own children or family after death of either or both spouses.
If you are going to co-own a property you should get an agreement to avoid a co-ownership dispute arising. An agreement will outline the process and how to end the relationship. It sets the pathway out if a dispute were to arise. It is worth noting however, that the Family Law Act overrides any co-ownership agreements where they are entered into by married or de facto spouses.
Most people don’t foresee issues arising, but circumstances change and so do relationships.
You should also do some estate planning and make sure you have a current will.
Yes, if you transfer ownership of a residential property between spouses, such as husband and wife, there is no stamp duty for your principal place of residence. If you transfer property to anyone else you will have to pay stamp duty, regardless of whether it is your principal place of residence.
You can amend the manner of holding from joint tenants to tenants in common however there may be duty implications arising from the property transfer. You may want to speak to a property lawyer before you proceed to do anything.
If you want to amend the manner of holding a new transfer of land will be done and if you have a mortgagee on the title, you will need prior written consent from them as the mortgagee is holding the electronic title to your property.
If you have a tenants in common or co-ownership dispute it can be difficult to navigate. Before you decide to own a property as a tenant in common, you should get an agreement drafted. If you and the other owners are intending to own the property for a commercial purpose, then a joint venture agreement will outline what each person is responsible for and what is to be done if there is a disagreement.
If one person changes their mind and wants to sell having an agreement can protect both parties. You may want a first right of refusal for example. Meaning if the other party wants to sell you have the first right to buy out their share.
The joint tenancy will end when the property is sold. Their share could be sold to a third party and/or transferred to the other tenant in common.
Forcing the other party to sell will be more difficult and can be done. It is much simpler to get an agreement such as a co-owner agreement or joint venture agreement in the first instance. These outlines what is to happen if you no longer want to co-own a property or if another party can’t pay for their share or doesn’t pay rates or taxes.
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Joint tenants hold the property jointly and have equal ownership and registered interest in the property. The other tenants have a right of survivorship.
A right of survivorship means that each joint tenant will have ownership of the property after the death of the joint tenant. Their property does NOT form part of the deceased’s estate and is not included in their will. Even if they intend to pass the property or share of the property onto others they cannot.
Tenants in common own a share of the property independently from each other. It is similar to owning a share in a company, which you can buy and sell. It does form part of your estate and you should have an up to date will.
Shares can be divided equally or unequally such as 50/50 or any other percentage such as 65/35, 99/1.
There are no limits as to how many people or entities can go on title either.
Disclaimer: This article has been prepared for general information purposes and may not apply to your situation. This information should not be relied upon for legal, tax or accounting advice. Your individual circumstances will alter any legal advice given. The views expressed may not reflect the opinions, views or values of Conveyancing Depot and belong solely to the author of the content. © Conveyancing Depot Pty Ltd.
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Jessica is an experienced conveyancing lawyer and has enjoyed helping many clients buy and sell...